IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
July 20, 2011
IN RE A.C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
MARCELA C., DEFENDANT AND APPELLANT.
(Los Angeles County Super. Ct. No. CK78884) APPEAL from orders of the Superior Court of Los Angeles County, Debra Losnick, Commissioner.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*
Affirmed and remanded.
*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication with the exception of the factual and procedural summary and section I of the discussion.
Mother Marcela C. appeals from orders of the juvenile court terminating dependency jurisdiction and ordering visitation with her minor daughters who had been adjudged dependent minors under Welfare and Institutions Code section 300.*fn1 In the published portion of this decision, we conclude that the oral visitation order, which conflicts with the form final judgment, is controlling and is not an improper delegation of authority to determine the circumstances of visitation. In the unpublished portion, we affirm the order terminating dependency jurisdiction because the conditions justifying dependency jurisdiction no longer exist.
FACTUAL AND PROCEDURAL SUMMARY
Mother, Marcela C., and father, Wilbur C., divorced in 2001. Their family law case was still open in 2009. They had two daughters, A.C. and Daphne, who were 15 and 12 years old respectively in September 2009. The family court had awarded full custody of the children to mother with visitation to father. Mother attempted suicide on March 27, 2009 and was involuntarily hospitalized as a danger to herself and others, and because she was gravely disabled. Father stayed with the children at mother's apartment until she was discharged on March 30, 2009 and resumed living with the children.
The minors lived with mother until August 2009 when mother asked father to take the girls because she wanted them to live with him due to stress she was experiencing. In early September 3, 2009, mother sought to have the children returned to her under the previous family law order. The children wanted to remain with father and mother agreed. But two days later, mother sought police assistance to have the children returned to her. The children were adamant that they were afraid of their mother because of her prior suicide attempt and hysterical behavior. A children's social worker and police officers went to father's home and interviewed father, his live-in girlfriend, and the children. The minors told the social worker that while they loved their mother, they did not feel safe with her because of problems including mother's severe mood swings and yelling. Both told the social worker that they wanted to live with father.
In an interview with the social worker, mother reported a history of domestic violence inflicted by father during their marriage. She said she suffered from depression and anxiety and had been hospitalized and medicated for these conditions, although she had discontinued the medication. Mother regretted attempting suicide in the presence of the minors and said she was doing much better. She attributed her mood swings and yelling at the minors to problems in getting the girls to take care of their chores at home and because A.C. wanted to date. Mother believed the minors preferred to live with father because he did not require them to abide by rules and gave them expensive gifts. She denied asking father to take custody of the girls.
The Department of Children and Family Services (the Department) filed a petition alleging the children came within section 300 because mother's mental and emotional condition and the history of domestic violence endangered the children's physical and emotional health and safety. The children were placed in protective custody and released to the custody of father. An amended petition was sustained, the children were declared dependents under section 300, and the Department was ordered to provide family reunification services for mother and family maintenance services for father. Counseling was ordered for the children, with conjoint counseling with mother when the children's therapist deemed it appropriate. Mother was ordered to have individual counseling. Upon written documentation that father previously had completed domestic violence and parenting classes, the court ordered that he need not complete other programs. Mother was to be provided monitored visitation in a therapeutic setting and did not object to this order.
On February 8, 2010, counsel for mother raised an issue regarding visitation and individual counseling for the minors as a walk on. She said that the minors only had individual counseling twice in the preceding five-month period, and requested that their counseling occur on a weekly basis. In addition, mother had not been allowed to visit the children more than once. Counsel for all parties, including mother, agreed to have two more visits between mother and the children in a therapeutic setting, followed by monitored weekly visits.
A hearing pursuant to section 364 was held on June 1, 2010. The social worker reported that mother had completed 17 individual therapy sessions. The children had four individual counseling sessions between November 2009 and January 2010, which stopped when they began conjoint counseling with mother. Father provided proof that he had completed a 52-session program in 2004. The social worker confirmed that mother had three visits with the children in February, April and May 2010. Mother had to cancel some visits because of her work schedule and the children also cancelled visits as they remained resistant to visits with mother. On May 12, 2010, the children told the social worker they wanted to live with father.
The Department recommended that jurisdiction over the children be terminated, that the matter be stayed pending receipt of a family law court order granting father sole physical custody, and joint legal custody to mother and father. The Department explained that the basis for these recommendations was that the relationship between mother and the children remained frustrating and in conflict despite mother's compliance with orders and case plans. Father had demonstrated the ability to meet the needs of the children. The contested hearing was continued at mother's request.
The interim review report prepared for the July 19, 2010 section 364 hearing stated that the last conjoint therapy session between mother and the children was held on May 15, 2010. The therapist reported that no further sessions were scheduled since the girls continued to express a great deal of anger toward mother because of her suicide attempt, issues with trust, and feelings of abandonment and rejection. A.C. was more open to rebuilding a relationship with mother, but Daphne avoided even eye contact with mother. Both girls expressed resentment and anger toward mother's fiancee. The Department repeated its recommendations from the previous report, including termination of dependency jurisdiction.
At the July 19, 2010 hearing, counsel for father asked the court to terminate jurisdiction and award him sole legal and physical custody of the children. Counsel cited mother's refusal to allow A.C. to participate in a school trip to China despite a court order that she sign the passport application. Counsel for mother asked that the case remain open, arguing that mother was in full compliance. She argued that mother had little visitation with the children and that few conjoint therapy sessions had been held. Mother was concerned that she was not notified that the girls had changed schools and about father's immigration status. In the event the court decided to terminate dependency jurisdiction, mother asked for joint legal custody.
Counsel for the children agreed with the Department's recommendations. She asked the court to award father both sole physical and legal custody based in part on mother's failure to facilitate A.C.'s trip to China, which A.C. had to cancel. Counsel for the children asserted that mother had taken the children off her dental insurance policy without notice to anyone, requiring father to assume the cost of orthodontia for Daphne. In addition, the children's attorney contended that mother had added her fiancee as an emergency contact at the children's school without permission or notice to anyone. Counsel anticipated that other problems would arise requiring a single parent to have legal custody, for example, A.C.'s plan to apply for a driver learner's permit, which requires the signatures of both parents. The Department reiterated its recommendations. Counsel for mother argued that the father and the Department had not complied with the orders for conjoint therapy or visitation, which were essential parts of the reunification plan.
The juvenile court found that conditions no longer existed that necessitated dependency jurisdiction. The court found that there was "little or no way that these parents can make decisions together. And, as a result, I am ordering sole legal and physical custody to the father with monitored visits for the mother." The parents were to determine supervised visitation. The parents were to decide on the monitor, and if unable to do so, father would choose. An exit order incorporating these rulings was entered and transmitted to the family law court pursuant to section 362.4. Mother's timely appeal followed.
Mother appears to argue that dependency jurisdiction should have been continued because she did not receive adequate reunification services and because the reunification plan for father was unreasonable. We discuss the latter argument first.
Mother argues it was not reasonable to allow father to satisfy the court's order for domestic violence classes by submitting proof of his prior completion of relevant programs. Father provided proof of completion of the program and was not required to complete additional programs in this matter. In her opening brief, mother says earlier domestic violence restraining orders were issued against father in July 1995 and in July 1996. The July 1995 restraining order is in the record. But the other restraining order cited by mother is dated July 2006. As counsel for the Department points out, mother failed to challenge the court's order allowing father to use his 2004 program to satisfy his plan in this matter. The rule is that failure to challenge a ruling in the juvenile court forfeits the issue on appeal unless the Court of Appeal exercises its discretion to entertain the challenge. (In re S.B. (2004) 32 Cal.4th 1287, 1293-1294.) Since this issue does not involve an important issue of law, we exercise our discretion not to entertain it. (Ibid.)
Mother's primary argument is that she was not given the visitation ordered by the court on February 8, 2010. She contends the visitation did not occur because the minors had not received court-ordered individual counseling, having received only two sessions in the preceding five-month period. At that point, the court ordered the next two visits to be with a therapist and set a progress hearing to ensure compliance with its orders. Mother argues the Department failed to implement the court's orders that the minors receive counseling intended to prepare them for visitation with her.
Mother emphasizes the importance of visitation to reunification. She claims that here the visitation plan was "designed to fail to achieve reunification" because she was given only one month of limited visitation during the period the court was monitoring visits to ensure they occurred. She contends that while the few visits she had were awkward because she had not seen the minors for six months, they were not detrimental to the children. She cites reports by the minors' therapist that mother's behavior was stable and non-threatening and suggesting that the girls have an opportunity to spend more time with mother to experience her emotional stability. Mother contends that the Department had a duty to provide reunification services even though the Department and juvenile court agreed that the conditions that had necessitated the court's intervention no longer existed.
The Department takes the position that because the children were never removed from parental custody, the reasonableness of reunification services was not at issue and the only question before the juvenile court was whether continued supervision was necessary.
Section 364 applies where, as here, a child is placed under court supervision pursuant to section 300 but is not removed from the physical custody of one or more parents. Periodic review hearings are to be scheduled at six month intervals and the social worker is to report on progress made in eliminating the conditions requiring court supervision. "The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c).) Failure of a parent to participate regularly in court-ordered treatment "shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary." (Ibid.) "If dependency jurisdiction is continued, the court must order continued services and set a further review hearing pursuant to section 364 to be held within six months. [Citation.] This review process is repeated until the court terminates jurisdiction. [Citations.]" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304, fn. omitted.)
There is a split of authority as to the proper scope of the court's inquiry at a hearing under section 364. The Department cites In re Janee W. (2006) 140 Cal.App.4th 1444, a case in which the Court of Appeal concluded that the court erred in proceeding under section 364 because the minors were not placed with a parent when first detained. (Id. at p. 1450-1451; contra Bridget A. v. Superior Court, supra, 148 Cal.App.4th at pp. 313-315.) In In re Elaine E. (1990) 221 Cal.App.3d 809, the Court of Appeal held that section 364 "limits the court's inquiry to whether the conditions for continuing supervision exist." (Id. at p. 814.)
We conclude the better approach was outlined in In re Roger S. (1992) 4 Cal.App.4th 25 (Roger S.). The court declined to follow In re Elaine E., supra, 221 Cal.App.3d 809. Instead, it held: "We think, however, when making an order to be transferred to the family court, the juvenile court has the power to hear evidence relevant to that order under section 362.4, which the Elaine E. court did not discuss. When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court. As section 362.4 gives the juvenile court power to fashion termination orders, it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to that task. To the extent Elaine E. implies that a trial court cannot receive evidence concerning visitation under section 362.4, we decline to follow it." (In re Roger S., supra, at p. 30, fn. omitted; see also In re Michael W. (1997) 54 Cal.App.4th 190, 194-196 [adopting approach of Roger S.].)
There is ample support for the juvenile court's conclusion that dependency jurisdiction should be terminated under section 364. The minors were thriving in father's custody. Dependency proceedings were instituted because of concern that the children were not safe in mother's custody in light of her attempted suicide and mental and emotional issues. Through the dependency proceeding mother received individual counseling and her mental and emotional state improved. Mother cites father's uncooperative behavior at times regarding the schedule for the children's therapy as a basis for continued dependency jurisdiction. On this record, the trial court properly concluded that the conditions which justified initial assumption of jurisdiction no longer existed. Under section 364 termination of dependency jurisdiction was mandatory under these circumstances. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 4.)
Once the juvenile court determined that termination of jurisdiction was required, there is no provision for continued reunification services. While there was evidence that visitation between mother and the children was hampered by the children's anger toward their mother and resistance to meeting with her, upon termination of jurisdiction, the court could only make visitation and custody orders as explained in In re Roger S., supra, 4 Cal.App.4th 25. It has done so in this case. We find no basis for reversal in mother's challenge to the reunification services provided.
Mother also argues the juvenile court improperly delegated visitation to the parents in its exit order. Father argues the issue was not preserved by mother because she failed to challenge the order in the dependency court. The Department takes no position on the issue, but directs our attention to In re T.H. (2010) 190 Cal.App.4th 1119 (T.H.), a case also cited by counsel for father.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. (§§ 364, subd. (c), 362.4; In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. [Citation.]" (T.H., supra, 190 Cal.App.4th at pp. 1122-1123.)
In T.H. the juvenile court terminated dependency jurisdiction and issued an exit order allowing supervised visitation by father "to be determined by the parents." (T. H., supra, 190 Cal.App.4th at p. 1122.) The court explained: "The power to determine the right and extent of visitation by a non-custodial parent in a dependency case resides with the court and may not be delegated to non-judicial officials or private parties. [Citation.] This rule of non-delegation applies to exit orders issued when dependency jurisdiction is terminated. (Ibid.; In re Chantal S. (1996) 13 Cal.4th 196, 213-214.)" (Id. at p. 1123.) The court in T.H. ruled that the order was improper: "This is more than simply a delegation of the authority to set the 'time, place, and manner' of the visitation--it effectively delegates to mother the power to determine whether visitation will occur at all." (190 Cal.App.4th at p. 1123.) In T.H., the record demonstrated the inability of the parents to get along, suggesting that any agreement regarding visitation would be difficult to achieve. (Ibid.) The Court of Appeal concluded that the juvenile court abused its discretion by framing the visitation order in a way that gave the mother an effective veto power over that right. (Id. at p. 1124.)
The circumstances of our case are distinguishable from T.H. Here, there is a conflict between the oral order of the court as reflected in the reporter's transcript and the form final judgment. It appears from the minute order and reporter's transcript that the juvenile court in this case intended that the parents agree on the monitor to supervise visitation, or if they were unable to do so, the father would choose the monitor. It did not indicate that the parents were to determine visitation. But the final judgment, which was on a printed form approved by the Judicial Council, had a box checked for supervised visitation which stated: "to be determined by the parents," the identical language at issue in T.H.
Where there is a conflict between the juvenile court's statements in the reporter's transcript and the recitals in the clerk's transcript, we presume the reporter's transcript is the more accurate. (Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 259.) Applying this principle, the court's oral order regarding visitation did not constitute an impermissible delegation of authority to determine whether visitation would occur. On remand, we direct the juvenile court to correct the exit order so it is consistent with the oral order regarding visitation.
The order terminating dependency jurisdiction and the visitation order are affirmed and the matter is remanded for correction of the exit order.
CERTIFIED FOR PARTIAL PUBLICATION